STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Award stage
(AM2014/260, AM2014/274, AM2014/278 and AM2014/280)

4-yearly review – Sub-group 4C construction awards.

Preamble

[1] In a 24 February 2016 Statement by Justice Ross, claims to vary the provisions of the Building and Construction General On-site Award 2010 (On-Site Award), the Plumbing and Fire Sprinklers Award 2010 (Plumbing Award), the Joinery and Building Trades Award 2010 (Joinery Award) and the Mobile Crane Hiring Award 2010 (Mobile Crane Award) (collectively the Construction awards) were referred to me in order to:

● “categorise the various issues raised in relation to the Construction awards”;
● “seek to resolve the matters in dispute”; and
● “identify those matters that require referral to a separately constituted Full Bench.” 1

[2] In directions of 26 February 2016, attending a notice of listing of a Preliminary Conference to commence the process directed to those outcomes, interested parties were directed to, in respect of the 24 February 2016 Revised - Summary of proposed variations - Group 3 and 4 awards to:

“(i) identify any errors or omissions including comments in the Notes comments regarding which issues are to be dealt with by other Full Benches; and

(ii) inform the Fair Work Commission if there are any issues in the summaries that they no longer wish to press.”

[3] Reflecting responses to that direction, a Revised - Summary of proposed variations - Construction awards was published on the Construction awards’ 4 yearly review web-page on 23 March 2016.

Preliminary Conference of 30 March 2016

[4] A Preliminary Conference of interested parties was held on 30 March 2016 to establish a program of conferences directed to achieving the purposes of the Conference set out by Justice Ross and, as far as possible, commencing that process in a substantive way.

Matters arising from the Preliminary Conference:

1. Further changes to the 23 March 2016 Revised – Summary of proposed variations – Construction awards:

(a) On-Site Award – correction to Item 6 to clarify that the intention is to vary the classification Schedule B.2.2(d), rather than the coverage clause in clause 4.1.

(b) Plumbing Award – Item 22 – not pressed by FPAA.

The 23 March 2016 Revised – Summary of proposed variations – Construction awards will be updated to reflect these changes.

In addition, commentary as to support of other proposals and consultation with other parties provided in response to the directions of 26 February 2016 will be removed from the “Notes” column of the 23 March 2016 Summary as follows:

● On-Site Award: Item 147 (AIG);
● On-Site Award: Items 173B and 173C (AMWU);
● Joinery Award: Item 3 (AIG) (replaced by “Referred by the President in [2016] FWC 1191 at [18] and [19] to same Full Bench constituted to deal with SDA claims (Group 4F) referred to in [16] of the Statement”);
● Joinery Award: Item 12 (AIG);
● Plumbing Award: Items 3, 6, 7, 8, 10, 16, 18, 20 and 21 (MPG); and
● Plumbing Award: Item 12 (FPAA). The reference to the Full Bench in [2015] FWCBC 3023 will be retained in Item 16 of the Plumbing Award.

Further, in respect of the following withdrawn claims:

● CFMEU claim in Item 13 of the On-Site Award;
● FPAA claim in Item 22 of the Plumbing Award; 2 and
● MPG claim in Item 3 of the Plumbing Award.

the text in the first 6 columns will be struck through, as occurs for example in relation to Item 7 of the Plumbing Award in the 23 March 2016 summary.

Items 69–70, 75, 77, 80, 87, 166 and 174–177 in the On-Site Award will also have a note added in the summary “Awaiting the finalisation of the application in AM2014/195”.

Finally, the notes in Items 1 and 2 (On-Site Award) and Items 1 and 2 (Joinery Award), will be amended to read “Referred to Award Flexibility Full Bench in AM2014/300, but referred back to the review of the Construction awards in AM2014/260 and AM2014/274 by the Award Flexibility Full Bench in [2015] FWCFB 7156”.

An updated Summary will be published on the Construction awards’ 4 yearly review web-page as Summary of proposed variations - Construction awards 1 April 2016.

2. For purpose of scheduling further conferences, the claims have been grouped as follows:

(a) Claims affecting more than one Construction award:

(i) Industry Specific Redundancy Scheme

On-Site Award – Items 17–18 (HIA), 19 (CCF), 20–23 (MBA) and 20A (Barrett)

Joinery Award – (less than five employees) Item 5 (MBA)

Plumbing Award – Items 2, 13 and 14 (an individual), 10 (MGP), 11 (MPMCA), 12 (FPAA) and 15 (Hall Baum Group)

(ii) Overtime – TOIL

On-Site Award – Items 1 (HIA) and 2 (MBA)

Joinery Award – Items 1 (HIA) and 2 (MBA)

(iii) Junior Rates

On-Site Award – Items 24 (MBA) and 25 (CCF)

Plumbing Award – Item 18 (MPG)

(iv) Travel and living away from home

On-Site Award – Item 121 (CFMEU)

Joinery Award – Item 8 (CFMEU)

Mobile Crane Award – Item 1 (CFMEU)

(v) Payment of Wages

On-Site Award – Items 151 (HIA), 152 (CCF) and 153–154 (MBA)

Joinery Award – Items 10 and 11 (MBA)

(vi) Coverage of Joinery

Joinery Award – Item 4 (MBA) – potentially affects On-Site Award coverage

(b) Claims to be otherwise dealt with subject to other matters

(i) Shift – additional week’s leave and loading

AIG in Joinery Award (Item 3).

This claim is also brought by AIG in respect of the Contract Call Centres Award 2010 (Sub-group 3A); the Telecommunications Services Award 2010 (Sub-group 3A) and the Electrical, Electronic and Communications Contracting Award 2010 (Sub-group 4A).

This claim was referred by the President in [2016] FWC 1191 at paragraphs [18] and [19] to same Full Bench constituted to deal with SDA (Sub-group 4F) claims referred to in paragraph [16] of the President’s statement.

(ii) Traffic Control Issues

Aside from more general proposals in relation to employment types in Items 9–12 in the On-Site Award, Mr J Broomhead has sought a number of variations to the On-Site Award in relation to traffic controllers (Allowance clauses for traffic controllers in Items 69–70, 75, 77, 80 and 87, Rosters in Item 166 and Classifications in Items 174–177). In AM2014/195, the Traffic Management Association of Australia has to make a new modern award to cover traffic controllers employed in the traffic management industry, which would potentially impact on the On-Site Award (and the Asphalt Industry Award 2010, the On-site Award and the Security Services Industry Award 2010). In light of that application, Items 69–70, 75, 77, 80, 87, 166 and 174–177 will await the finalisation of the application in AM2014/195.

(c) Allowance claims in the On-Site Award

Numerous claims have been advanced in respect of allowances in the On-Site Award in the context of the broader pursuit of a rationalisation of exiting allowance provisions. These matters will be dealt with as a discrete group of claims in the conciliation process.

The allowance claims are found in the Summary in relation to the On-Site Award as Items 35–146 (other than Item 121 in 2(a)(iv) and Items 69–70, 75, 77, 80, 87 in 2(b)(ii)).

(d) Other claims in the On-Site Award

The remaining claims in relation to the On-Site Award will be grouped together: They are Items 3–12, 14–16, 26–34, 147–150, 155–165 and 167–173C.

(e) Other claims in the Joinery Award

The remaining claims in relation to the Joinery Award will be grouped together: They are Items 4A, 6, 7, 9 and 12–15.

(f) Other claims in the Plumbing Award

The remaining claims in relation to the Plumbing Award will be grouped together: They are Items 1, 3, 5–6, 8–9, 16, 19, 20 and 21.

(g) Other claims in the Mobile Crane Award

There are no other claims in relation to the Mobile Crane Award.

It may be noted that Items 14–16 (FWO) in the On-Site Award and Item 4A (HIA) in the Joinery Award concern Casual Employment. HIA has suggested that at least some of these Items be referred to the Full Bench dealing with the Part-Time/Casual Common matter (AM2014/197). The CFMEU suggested that Item 15 was already being dealt with by the Casuals Full Bench. Referral, through the President, is a matter which could be discussed further in the conciliation conference scheduled for Thursday, 14 April 2016 below. However, given the substantial hearings in that matter already, any party with an interest in Items 14–16 of the On-Site or Item 4A of the Joinery Awards, concerned that the outcome in AM2014/197 might affect those Items should take necessary steps to protect their interests in the proceedings in AM2014/197.

3. Potential Overlap with technical issues/matters arising from Exposure Drafts for the Construction awards

It is noted that in a Statement of 23 March 2016, 3 Justice Ross, published a timetable in respect of Group 4 Exposure Drafts, with:

• Sub-group 4C exposure drafts to be published in April 2016;

• Submissions on drafting and technical issues to be filed for Sub-group 4C exposure drafts on 23 June 2016, with reply submissions due on 14 July 2016; and

• Hearings re drafting and technical issues in Sub-group 4C awards in August 2016.

It may be that some of the “other claims” are affected and/or resolved by the publication of the Exposure Drafts for the Construction awards.

4. Program of Conferences

A program of conciliation conferences will occur within four broad groups of claims (Items):

(i) Claims affecting more than one Construction award;
(ii) Allowance claims in the On-Site Award;
(iii) Other claims in the On-Site and Joinery Awards (given the limited number of “other” Joinery claims and the common interested parties); and
(iv) Other claims in the Plumbing Award.

Conciliation Conferences will be scheduled as follows:

(i) 9.30 am on Thursday, 14 April 2016 in Sydney (video to Melbourne available) to deal with:

• Claims affecting more than one Construction award.



• Allowance claims in the On-Site Award.



• Possible referral of Casual Employment claims.

It is understood that the CFMEU and MBA (with consultation with or involvement of other interested parties) will meet and confer in relation to the allowance claims prior to the Conference.

(ii) 9.30 am on Tuesday, 19 April 2016 in Melbourne (video to Sydney available) to deal with other claims in the Plumbing Award.

It is understood that the CEPU and Plumbing employer organisations will meet and confer in relation to these claims prior to the Conference.

(iii) 9.30 am on Tuesday, 7 June 2016 in Sydney (video to Melbourne available) to deal with other claims in the On-Site and Joinery Awards.

As a result of the technical issues/Exposure Draft process, it is desirable that conciliation in relation to the larger number of “other claims” in the On-Site Award occur after interested parties have had an opportunity to consider the Exposure Draft when published in April 2016. It is also desirable that the interested parties, having considered the Exposure Draft advise the Fair Work Commission and each other if any of the “other issues” in the Summary of proposed variations can be removed from the list of outstanding items on the basis that they have either been resolved or are more appropriately dealt with in the context of the Exposure Draft process. This advice should be provided by Tuesday, 31 May 2016 and interested parties should confer in relation to the impact of the Exposure Draft on other claims before the Conference.

The dates of Wednesday 8, Thursday 9, Wednesday 15 and Thursday, 16 June 2016 will be reserved for further Conferences if required, with a view to providing a Report to the President and posting on the web-site a final Summary of proposed variations in respect of the Construction awards by the end of June 2016.

It is noted that interested parties are conferring in relation to claims in the Construction awards prior to conferences. The withdrawal or modification of any claims arising from such discussions should be advised to me as soon as possible before the conciliation Conferences scheduled for publication on the Construction awards’ 4 yearly review web-page.

SENIOR DEPUTY PRESIDENT

 1   [2016] FWC 1191, at para 13.

 2   Transcript of Preliminary Conference, at para 152.

 3   [2016] FWC 1838.

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